Sunday, April 25, 2010

Or, more simply, you can’t sell what you don’t own. And the corollary is that you should not try buy what someone else doesn’t own.

Like a smart cell phone that someone finds lying around, apparently in a bar. Especially when it is a gee-whiz model that is rumored to exist but isn’t even on the market yet. And even more especially when the phone contains identifying data about the phone’s user, and it isn’t the person trying to sell the phone to you.

The authorities in San Mateo County in California are considering whether to file criminal charges in connection with the sale of a missing next-generation iPhone belonging to Apple.

The San Mateo district attorney could act by early next week, according to people involved in the investigation. The office has the option of filing felony charges.

According to California law, if property doesn’t exceed $950, a case will be classified as a misdemeanor, but since the technology blog Gizmodo paid $5,000 for the device, a felony charge would be possible.

Gizmodo’s defense that “it didn’t know it was stolen” strains credulity because — remember — the phone had never been offered anywhere for sale. And why would it have information about a user other than the person selling the phone to Gizmodo?

Gizmodo was willing to pay $5,000 for a cell phone because it was stolen, and a valuable and unavailable prototype to boot, and Gizmodo knew it. The fact that Gizmodo gave it back may help the company, but part, probably most, of the phone’s value was its trade secret features, and these cannot be given back. It probably also matters whether the physical phone was given back returned before or after Gizmodo was contacted by law enforcement.